Pr. Commissioner Of Income Tax (Central v. M/S. Gera Development Pvt Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL NO. 774 OF 2016 Pr. Commissioner of Income Tax (Central) ..Appellant Versus M/s. Gera Development Pvt Ltd..Respondent ................... Mr. Tejveer Singh for the Appellant Mr. Tejveer Singh for the Appellant Mr. Mihir Naniwadekar i/by Alisha Pinto for the RespondentMr. Mihir Naniwadekar i/by Alisha Pinto for the Respondent ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : DECEMBER 17, 2018. P.C.: 1.This appeal under Section 260A of the Income Tax Act,1961 ("the Act" for short) challenges the order dated31.12.2014 passed by the Income Tax Appellate Tribunal,Pune ("the Tribunal" for short). This appeal relates toassessment year 2009-10. 2.The Revenue has filed single appeal with regard to thejudgment of the Tribunal which has disposed of appeals filedby the respondent - assessee as well as by the Revenuebefore the Tribunal. Mr. Tejveer Singh, the learned counsel appearing for the Revenue, seeks to restrict this appeal onlyto the Revenue's appeal before the Tribunal. However, heseeks liberty to file separate appeal along with anappropriate application for condonation of delay with regardto the impugned order disposing of the assessee's appeal.Liberty as prayed for granted. 3.In the above view, the only question urged before us isas follows: “Whether on the facts and circumstances of the case andin law, the Tribunal was justified in allowing the claim of thededuction u/S. 80IB(10) of the Act ignoring the provisionsof Section 80IB(10)(a)(iii) which required production ofcompletion certificate indicating completion of the project? 4.We find that the issue that arises here as is evidentfrom the question is whether the explanation to Section80IB(1)(a)(iii) of the Act has been satisfied by the respondent- assessee or not. The impugned order of the Tribunalrecords a finding that in the present facts, the respondenthad in respect of the project for which it was grantedcommencement certificate on 21.11.2005 was completed on4.12.2007. This is evident by the application for completioncertificate along with the Architect's certificate to Pune Municipal Corporation. However, there has been a delay onthe part of Municipal Corporation in issuing the necessaryrequisite completion certificate. The impugned order dated31.12.2014 upheld the order dated 31.1.2013 of theCommissioner of Income Tax (Appeals) [CIT(A)] which had onthe facts found that the project was completed much beforethe five years period of completing the project from the dateof commencement certificate as provided in Section 80IB(10)(iii) of the Act. It further makes reference to theDevelopment Control Rules of Pune Municipal Corporationwherein it is provided that where the occupancy certificate isnot issued within the period of 21 days, then in absence ofany objections being notified, it would be deemed to begranted. Further the impugned order has placed relianceupon the order of its co-ordinate bench in the case of SatishBora and Associates vide ITA No. 713 & 714/PN/2010 dated7.2.2011 which in identical facts had extended the benefit ofSection 80IB(10)(iii) of the Act to the assessee therein.Further reliance was placed upon the decision in the case ofCIT Vs. Tarnetar Corporation, (2014) 362 ITR 174 (Guj). 5.Mr. Tejveer Singh, the learned counsel in support of theappeal, pointed out that the appeal bearing Income TaxAppeal No. 362 of 2011 from the order of the Tribunal inSatish Bora (supra) has been admitted by this Court on1.2.2013. It is further submitted that following the aforesaidorder, this Court has entertained further appeals also on thisvery issue. Therefore, this appeal also requires admission. 5.Mr. Tejveer Singh, the learned counsel in support of theappeal, pointed out that the appeal bearing Income TaxAppeal No. 362 of 2011 from the order of the Tribunal inSatish Bora (supra) has been admitted by this Court on1.2.2013. It is further submitted that following the aforesaidorder, this Court has entertained further appeals also on thisvery issue. Therefore, this appeal also requires admission. 6.Mr. Naniwadekar, the learned counsel appearing for therespondent pointed out that the issue raised by the Revenuein this appeal no more res integra. This in view of thedecision dated 2.2.2015 of the Aurangabad Bench of thisCourt in the case of CIT, Aurangabad Vs. HindustanSamuh Awas Ltd, [2015] 62 taxmann.com 175(Bombay) holding on identifal facts that where the builderhas completed a housing project within the time providedunder Section 80IB(10)(a)(iii) of the Act and had also filed anapplication seeking completion certificate from the MunicipalCorporation in time, then, the said builder - assessee isentitled to the benefit of Section 80IB(10)(a)(iii) of the Act.This notwithstanding the fact that the certificate has not been issued by the municipal corporation before the lastdate for completion of project. The aforesaid decision inHindustan Samuh Awas Ltd (supra) of this Court haddismissed the Revenue's appeal at final hearing on thesubstantial question of law. Moreover, the decision wasrendered after the appeal in the case of Satish Bora (supra)was admitted. As the decision in Hindustan Samuh Awas Ltd(supra) concludes the issue raised herein finally, the same isbinding upon us. More so in absence of the Revenue beingable to show any distinguishing factor in this case whichwould warrant different view than that taken by this Court inHindustan Samuh Awas Ltd (supra). 7.Therefore, the question of law as proposed does notgive rise to any substantial question. Thus, not entertained.give rise to any substantial question. Thus, not entertained. 8.Accordingly, appeal is dismissed. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]